Gypsy Oil Co. v. Colbert

• Citation: 65 P.2d 505,1936 OK 775,179 Okla. 321
• Decision Date: 08 December 1936
• Docket Number: Case Number: 24031
• Parties: GYPSY OIL CO. v. COLBERT
• Court: Supreme Court of Oklahoma

1936 OK 775

65 P.2d 505

179 Okla. 321

GYPSY OIL CO. v. COLBERT

Case Number: 24031

Supreme Court of Oklahoma

Decided: December 8, 1936

Syllabus

¶0 1. PLEADING - Sufficiency of Petition to Withstand General Demurrer if Any Count States Cause of Action.

Where any one count of a petition, when taken alone, states sufficient grounds to entitle plaintiff to relief, the petition is sufficient as against general demurrer.

2. SAME - Theories of liability for Prior Negligence of Defendant and Negligence Under Doctrine of Last Clear Chance Doctrine Held Inconsistent and That Overruling Defendant's Motion to Require Election of Remedies Constituted Reversible Error.

Where, by the allegations of a petition, plaintiff seeks damages for personal injuries resulting from prior negligence of defendant, and, in the alternative, seeks damages for the same injury resulting from defendant's negligence under the doctrine of the last clear chance, the remedies so pursued are inconsistent and repugnant, and the overruling of defendant's motion to require plaintiff to elect constitutes reversible error.

Appeal from District Court, Tulsa County; S.J. Clendinning, Judge.

Action by Mamie Colbert against the Gypsy Oil Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with instructions.

James B. Diggs, William C. Liedtke, Russell G. Lowe, Redmond S. Cole, Cyrus L. Billings, and James B. Diggs, Jr., for plaintiff in error.

C.B. Stuart, E.J. Doerner, and B.A. Hamilton, for defendant in error.

GIBSON, J.

¶1 This action was commenced in the district court of Tulsa county by defendant in error, hereinafter referred to as plaintiff, against plaintiff in error, hereinafter referred to as defendant, to recover damages for personal injuries sustained as a result of an automobile collision.

¶2 According to the allegations of the petition, the collision occurred on Highway No. 66, northeast of the city of Bristow, when plaintiff attempted to drive her automobile to the left around another car parked on her side of the pavement; that, in so doing, plaintiff's car collided with the defendant's car, which was coming from the opposite direction, resulting in serious injury to plaintiff. Plaintiff alleges negligence on the part of defendant as follows:

"(a) That the agent and servant of this defendant was driving the said Buick automobile of the defendant at a high, dangerous and reckless rate of speed in violation of the statutes of the State of Oklahoma, to wit: More then 60 miles an hour.

"(b) That the defendant's agent and servant then and there driving said automobile in the course of his employment by this defendant, was guilty of negligence and carelessness in that he was failing to keep and maintain a proper lookout for persons or automobiles, including the automobile being driven by this plaintiff upon said highway, and failed and neglected to observe either car upon said highway, and the conditions created by the car parked on the south side thereof. * * *

"(d) Plaintiff, pleading in the alternative, alleges that if the defendant's agent and servant was keeping and maintaining a proper lookout approaching the point of said accident on said highway, he was guilty of negligence in that he failed and neglected to check the speed of said automobile, or stop said automobile after discovering the perilous position of said automobile which was passing to the left of said parked automobile on the south side of said pavement.

"(e) That as a direct and proximate result of the acts of negligence and carelessness herein alleged, this plaintiff sustained the following injuries: * * *"

¶3 Verdict and judgment were for plaintiff, and the defendant has appealed, assigning numerous errors.

¶4 The errors complained of are presented under four propositions; the first is as follows:

"The theories of liability for prior negligence and negligence under the last clear chance doctrine are fundamentally inconsistent.

"(1) The petition failed to state a cause of action. (Errors 1, 2, 4, 6, 8, 15, and 45.) revented a trial of the facts. (Errors 3, 5, 7, 15, 16, 24, 30, 37, 38, 39, 40, 41, 43, 44, and 45.)"

¶5 It is called to our attention that recovery is sought in paragraphs "a" and "b" on the theory of negligence in excessive speed and failure to observe plaintiff, and in paragraph "d" on the theory of last clear chance or failure to avoid the collision after discovery of plaintiff's peril. Defendant contends that the basic elements and proof necessary to support recovery upon one theory conflict with, rebut, or disprove those of the other theory, and therefore said theories are inconsistent and cannot be asserted or mantained together upon a single state of facts. In this connection it is said that under the prior negligence theory the legal duty devolving upon defendant was: (1) To drive at such speed as to be able to avoid collision with plaintiff; (2) to observe or discover plaintiff and thus be able to prevent collision. That a breach of such duty was: (1) driving at such speed as to be unable to avoid the collision; (2) failure to discover plaintiff, and therefore inability to avoid the collision. That the proximate cause of injury was: (1) Excessive speed; (2) failure to discover plaintiff.

¶6 It is further stated that under the last clear chance theory defendant's legal duty was to avoid collision after timely discovery of plaintiff's peril, and that a breach of that duty was the timely discovery of plaintiff but failure to avoid collision, and that the proximate cause of injury was defendant's failure to avoid collision after timely discovery of plaintiff's peril.

¶7 Defendant argues that as to speed, under the prior negligence theory, it was necessary to prove facts raising the duty on the part of defendant to drive at such speed as to be able to avoid the collision; as to the last clear chance, it was necessary to prove facts showing that defendant did drive at such speed as to be able to avoid the collision, and that proof of the latter duty destroys the basis of breach of the former duty. If is further said that the total repugnancy of the two theories is made apparent in the inconsistency of the proof required to establish breach of duty under the two theories. Under the one, it was necessary to prove that defendant drove at such speed as to be unable to avoid collision. Under the other, it was necessary to prove that defendant drove at such speed as to be able to avoid the collision. And, plaintiff says, further repugnancy is shown in that the nonexistence of contributory negligence on plaintiff's part was essential on the question of proximate cause under the excessive speed theory, while under the last clear chance theory the existence of contributory negligence upon which plaintiff's peril arose was assumed in order to apply the doctrine.

¶8 This argument is based upon the assumption that the petition contains allegations sufficient to support the two theories named. It is contended that the facts alleged and implied are so inconsistent as to be self-refuting and insufficient as a basis of any liability, and, in this respect, failed to state a cause of action.

¶9 In seeking redress for her injury, plaintiff has attempted to pursue two distinct remedies. In so doing she has stated two causes of action, each based upon different alleged negligent acts of the defendant. The fact that the allegations were in the alternative, and the counts not numbered, makes them nonetheless a statement of two causes of action. Gallemore v. Buzzard, 98 Okla. 104, 224 P. 293. Each count looks to the same recovery. If either count stated a cause of action, the petition was good as against a general demurrer based upon inconsistency of the allegations of the different counts. Roxana Pet. Co. v. Covington State Bank, 98 Okla. 266, 225 P. 375, 35 A. L. R. 774. In that case it was held that a plaintiff may not be denied a trial on his primary cause of action, although the allegations of the separate counts may be so inconsistent as to be mutually totally destructive of the cause of action stated in each count. But this holding was limited more or less to the allegations of inconsistent facts peculiarly within the knowledge of the defendant. This court has never held that the allegations of separate counts, although wholly repugnant to and mutually destructive of each other, render the entire petition fatally defective when challenged by general demurrer.

¶10 We think the correct view of this matter, as being more in conformity with the prior decisions of this court, is that where any one count of a petition, taken alone, states sufficient grounds to entitle plaintiff to relief, the petition should be sustained as against a general demurrer. Where the separate counts are inconsistent with, and repugnant to, each other, an election may be required, as stated in Roxana Petroleum Co. v. Covington State Bank, supra. In that case it was held as follows:

"In such case, after issues have been joined, the court will confine the proof to the issues, or, in a proper case, require an election."

¶11 Pleading in the alternative is ordinarily not favored. Several acts of negligence causing the same injury may be pleaded in the conjunctive; but to plead them in the alternative destroys certainty in pleading (Benelli v. A., T. & S. F. Ry. Co. (Kan.) 243 P. 1004, citing 31 Cyc. 74; 6 Encyc. P. & P. 268; 21 R. C. L. 47). However, alternative pleading is permitted in furtherance of justice, and such pleading is not subject to demurrer on that ground. Garfield Oil Co. v. Crews, 134 Okla. 229, 273 P. 228.

¶12 In view of the foregoing, we are of the opinion that the overruling of the general demurrer to the petition was not error.

¶13 Although plaintiff's petition was good as against a general demurrer, defendant's motion to require an election properly presented the question of inconsistency or repugnancy of the allegations in the separate counts. Were the remedies...